EVIDENCE I.

INTRODUCTION

REMEDIAL LAW
TO FACTUM PROBANDUM • The ultimate fact or the fact sought to be established. It refers to the proposition (e.g. victim was stabbed). TO FACTUM PROBANS • The evidentiary fact or the fact by which the factum probandum is to be established; refers to the materials that establish the proposition (e.g. bloody knife).

DEFINITION
• The means, sanctioned by these rules, of ascertaining in a judicial proceeding, the truth respecting a matter of fact. [Rule 128, Sec. 1] The mode and manner of proving competent facts in judicial proceedings. [Bustos v. Lucero]

SCOPE
• General Rule: Rules of evidence shall be the same in all courts and in all trials and hearings • Exception: If otherwise provided by: 1) law; 2) ROC.

CLASSIFICATION
ROC CLASSIFICATION ACCORDING TO FORM 1) OBJECT – Directly addressed to the senses of the court [Rule 130, Sec. 1] • Referred to as real evidence or evidence by “autoptic preference”. 2) DOCUMENTARY - Consist of writing or any material containing modes of written expression (i.e. words, numbers, figures, symbols) offered as proof of their contents. [Rule 130, Sec. 2] 3) TESTIMONIAL - Submitted to the court through the testimony or deposition of a witness. OTHER CLASSIFICATIONS [Regalado] 1) DIRECT – Proves the fact in dispute without aid of any inference or presumption. CIRCUMSTANTIAL – Proof of fact/s from which, taken singly/collectively, the existence of the particular fact in dispute may be inferred as a necessary/probable consequence. It is evidence of relevant collateral facts. 2) CUMULATIVE – Evidence of the same kind and to the same state of facts. CORROBORATIVE – Additional evidence of a different character to the same point. 3) PRIMA FACIE – That which, standing alone, is sufficient to maintain the proposition affirmed. CONCLUSIVE – That class of evidence which the law does not allow to be contradicted. 4) PRIMARY – (Best evidence) The law regards these as affording the greatest certainty of the fact in question. SECONDARY – (Substitutionary evidence) Permitted by law only when the best evidence is unavailable. 5) POSITIVE – When a witness affirms that a fact did or did not occur (there is personal knowledge). NEGATIVE – When witness states that he did not see or know of the occurrence of a fact (total disclaimer of personal knowledge).

EVIDENCE COMPARED
TO PROOF • It is the result or effect of evidence; when the requisite quantum of evidence of a particular fact has been duly admitted and given weight, the result is called the proof of such fact. 100% UP LAW UP BAROPS 2008 Page 66 of 227

EVIDENCE II. ADMISSIBILITY

REMEDIAL LAW
a) Unreasonable searches and seizures; privacy of communication and correspondence. [Art. 3, Sec 2 & 3, Consti] b) Miranda Rights; right to counsel, prohibition on torture, force, violence, threat, intimidation or other means which vitiate the free will; prohibition of secret detention places, solitary, incommunicado. [Art. 3, Sec. 12, Consti] c) No person shall be compelled to be a witness against himself. [Art. 3, Sec. 17, Consti] 2) Statutory: a) Lack of documentary stamp tax to documents required to have one makes such document inadmissible as evidence in court until the requisite stamp/s shall have been affixed thereto and cancelled. [Sec. 201, NIRC] b) Any communication obtained by a person, not being authorized by all the parties to any private communication, by tapping any wire/cable or using any other device/arrangement to secretly overhear/intercept/record such information by using any device, shall not be admissible in evidence in any judicial/quasi-judicial/legislative/ administrative hearing or investigation. [Sec. 1 & 4 RA 4200 (Wire-Tapping Act)] • An extension phone cannot be placed in the same category as a dictaphone, dictograph or the other devices enumerated in Sec. 1 of RA 4200 as the use thereof cannot be considered as “tapping” the wire/cable of a telephone line. [Ganaan v. IAC (1986)] c) Rules on Electronic Document. d) CC presumptions (e.g. Art. 2185 as to presumption of negligence when there is violation of traffic rules). e) Commercial laws (e.g. Art. 448, Code of Commerce on the evidentiary weight of conflicting entries in merchants’ books).

WHEN DETERMINED
• At the time evidence is offered to the court. [Rule 132, Sec. 35]

KINDS OF ADMISSIBILITY
1) CONDITIONAL – Evidence, at the time offered, appears to be immaterial/irrelevant unless it is connected with other facts to be subsequently proved. The evidence may be received in condition that the other facts will be proved thereafter; but there should be no bad faith. 2) MULTIPLE – Evidence is relevant and competent for 2 or more purposes. 3) CURATIVE – Considers a party’s right to introduce incompetent evidence in his behalf where the court has admitted the same kind of evidence adduced by the adverse party.

RELEVANCE AND COMPETENCE
• ADMISSIBLE EVIDENCE – Evidence that is both relevant and competent. [Rule 128, Sec. 3]

RELEVANCE [Rule 128, Sec. 4] • Definition: Evidence has such a relation to the fact in issue as to induce belief of its existence or non-existence. • General rule: Evidence on collateral matters is not allowed. • COLLATERAL MATTERS – Matters other than the fact in issue and which are offered as a basis for inference as to the existence or non-existence of the facts in issue. • Exception: When it tends in any reasonable degree to establish the im/probability of fact in issue. • Evidence may be relevant but immaterial to the case.
Relevance Evidence having any value in reason as tending to prove any matter provable in an action Logical relation of the evidence to the fact in issue (i.e. WON the former tends to establish probability or improbability of the latter) Refers to the tendency in reason of offered fact A to prove fact B Material Evidence directed to prove a fact in issue as determined by the rules of substantive law and pleading Determined by WON the fact it intends to prove is in issue

Definition

RULES ON ADMISSIBILITY 1. OBJECT EVIDENCE
• Definition: Those addressed to the senses of the court. [Rule 130, Sec. 1] • It includes the anatomy of a person or of any substance taken therefrom. [US v. Tan Teng] General rule: When object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. [Rule 130, Sec. 1] • Exception: Court may refuse introduction of object evidence and rely on testimonial alone if: 1) Its exhibition is contrary to public policy, morals or decency; 2) It would result in delays, inconvenience, unnecessary expenses, out of proportion to the evidentiary value of such object; [People v. Tavera]

Test


Refers to the relationship between fact B and the issues in the case

COMPETENCE [Rule 128, Sec. 3] • • Definition: Evidence is not excluded by law or ROC. Exclusionary rules: 1) Constitutional: UP BAROPS

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EVIDENCE
3) The evidence would be confusing or misleading. [People v. Saavedra] •

REMEDIAL LAW
The offeror, upon proof of its execution/existence and cause of its unavailability, without bad faith on his part, may prove its contents by (in order): [Rule 130, Sec. 5] a) A copy; b) A recital of its contents in some authentic document; c) The testimony of witnesses. 2) Original document is in adverse party’s custody/control. [Rule 130, Sec. 6] • If after reasonable notice is given to the adverse party to produce the document and after satisfactory proof of the existence of the document is made, he fails to produce the document, secondary evidence may be presented. 3) Original document is a public record. [Rule 130, Sec. 7] • Its contents may be proved by a certified copy issued by the public officer in custody thereof. • The offeror of secondary evidence is burdened to prove: [Lee v. People (2004)] 1) The loss or destruction of the original without bad faith on the part of the proponent/offeror which can be shown by circumstantial evidence of routine practices of destruction of documents; 2) The proponent must prove by a fair preponderance of evidence as to raise a reasonable inference of the loss or destruction of the original copy; 3) It must be shown that a diligent and bona fide but unsuccessful search has been made for the document in the proper place or places. It has been held that where the missing document is the foundation of the action, more strictness in proof is required than where the document is only collaterally involved. If the document is one in which other persons are also interested, and which has been placed in the hands of a custodian for safekeeping, the custodian must be required to make a search and the fruitlessness of such search must be shown, before secondary evidence can be admitted. The certificate of the custody of the document is incompetent to prove the loss or destruction thereof. Such fact must be proved by some person who has knowledge of such loss. [Lee v. People (2004)] Where the original is in the custody of the adverse party, it is not necessary that it be in the actual possession of the adverse party. It is enough that the circumstances show that the writing is in his possession or under his control. Secondary evidence is admissible where the adverse party denies having it in his possession. [Villa Rey Transit v. Ferrer (1968)] All duplicates/counterparts must be accounted for before using copies as evidence. [De Vera v. Aguilar (1983)] The voluminous character of the document must be established before evidence other than the original may be introduced. [Maritima v. Allied Free Workers (1977)] When the original is outside the jurisdiction of the court, as when it is in a foreign country, secondary evidence is admissible. [PNB v. Olila]

2. DOCUMENTARY EVIDENCE
• Definition: Writings or any material containing letters, words, numbers, figures, symbols or other modes of written expression offered as proof of their content. [Rule 130, Sec. 2]

a. BEST EVIDENCE RULE [Rule 130,
Sec. 3] • General rule: When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. • Exception: 1) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the offeror’s part; 2) When the original is in custody or under control of party against whom evidence is offered, and latter fails to produce it after reasonable notice; 3) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time, and the fact sought to be established from them is only the general result of the whole; 4) When the original is a public record in the custody of a public officer or is recorded in a public office.

ORIGINAL OF A DOCUMENT • Definition: [Rule 130, Sec. 4] 1) One the contents of which are the subject of inquiry. 2) When a document is in 2 or more copies executed at or about the same time, with identical contents, all such copies are equally regarded as originals. 3) When an entry is repeated in the regular course of business, one being copied from another at/near the time of the transaction, all the entries are likewise equally regarded as originals. • Affidavits and depositions are considered not being the best evidence, hence not admissible if the affiants/deponents are available as witnesses. The contents of such affidavits and depositions are not the issues in the case but are only intended as evidence to establish the issues in controversy. [Regalado] • Carbon copies are deemed duplicate originals. They may be introduced as evidence without accounting for the non-production of the original. [People vs. Tan (1959)] • The Best Evidence Rule applies only when the contents of the document are the subject of inquiry. It does not apply when the issue is only as to WON such document was actually executed or in the circumstances relevant to its execution. [People v. Tandoy (1990)]

b. SECONDARY EVIDENCE
WHEN SECONDARY EVIDENCE MAY BE INTRODUCED 1) Original document is unavailable (lost, destroyed or cannot be produced in court); 100% UP LAW UP BAROPS •

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• Before a party is allowed to adduce secondary evidence to prove the contents of the original sales invoices, the offeror must prove the following: (1) the existence or due execution of the original; (2) the loss and destruction of the original or the reason for its nonproduction in court; and (3) on the part of the offeror, the absence of bad faith to which the unavailability of the original can be attributed. The correct order of proof is as follows: existence, execution, loss, and contents. At the sound discretion of the court, this order may be changed if necessary. [Citibank v. Teodoro (2003)] A party who calls for the production of a document and inspects it is not obliged to offer it as evidence. [Rule 130, Sec. 8]

REMEDIAL LAW

• •

• •

The Parol Evidence Rule does not apply to collateral agreements. [PNB v. Seeto (1952)] The rule does not apply to exclude evidence of conditions subsequent in a deed of sale where such conditions were not stated in the agreement. [Pioneer Savings v. CA] It also does not apply if the issue revolves around fraud and false representation since they are incidental to the execution and not to the integration. [Woodhouse v. Halili (1953)] It does not apply either when 3rd parties are involved. [Lechugas v. CA (1986)] The exceptions to the Parol Evidence Rule must be squarely put in issue. [Ortañez v. CA (1997)]
Parol Evidence Rule Presupposes that the original document is available in court Best Evidence Rule Contemplates the situation wherein the original writing is not available and/or there is a dispute as to whether said writing is the original Prohibits the introduction of substitutionary evidence in lieu of the original document regardless of WON it varies the contents of the original Applies to all kinds of documents Can be invoked by any party to an action regardless of WON such party participated in the writing involved

c. PAROL EVIDENCE RULE [Rule
130, Sec. 9] • Definition: Any evidence aliunde, whether oral or written, which is intended or tends to vary or contradict a complete and enforceable agreement embodied in a document. General rule: When the terms of an agreement (including wills) have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement. • Exception: A party may present evidence to modify, explain or add to the terms of written agreement if he puts in issue in his pleading: 1) An intrinsic ambiguity, mistake or imperfection in the written agreement; • Mistake here refers to a mistake of fact mutual to the parties or where the innocent party was imposed upon by unfair dealing of the other. • Imperfection includes an inaccurate statement in the agreement or incompleteness in the writing or the presence of inconsistent provisions therein. 2) The failure of the written agreement to express the true intent and agreement of the parties thereto; 3) The validity of the written agreement; 4) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written agreement.
Latent/intrinsic validity When the writing on its face appears clear and unambiguous but there are collateral matters or circumstances which make the meaning uncertain or where a writing admits of two constructions both of which are in harmony with the language used Parol evidence admissible Patent/extrinsic validity Ambiguity which is apparent on the face of the writing itself and requires something to be added in order to ascertain the meaning of the words used

Prohibits the varying of the terms of a written agreement

Applies only to documents contractual in nature (Exception: wills) Can be invoked only when the controversy is between the parties to the written agreement, their privies or any party directly affected thereby

d. RULES ON INTERPRETATION OF DOCUMENTS
1) Interpretation of a writing according to the legal meaning it bears in the place of execution, unless parties intended otherwise. [Rule 130, Sec. 10] 2) Instrument construed so as to give effect to all provisions. [Rule 130, Sec. 11] 3) Parties’ intention is to be pursued in construction of instrument. In the inconsistency between general and particular provision, the latter prevails. Particular intent controls general one inconsistent with it. [Rule 130, Sec. 12] 4) The circumstances under which an insturment was made, including the situation of the subject thereof and of the parties to it, may be shown, so that the judge may be placed in the position of those whose language he is to interpret. [Rule 130, Sec. 13] 5) The terms of a writing are presumed to have been used in their primary and general acceptation, but evidence is admissible to show that they have a local/technical/peculiar signification and were so used and understood in the particular instance, in which case the agreement must be construed accordingly. [Rule 130, Sec. 14] 6) When there is inconsistency between written words and printed words, the former controls over the latter. [Rule 130, Sec. 14] 7) Experts and interpreters to be used in explaining writings that are difficult to be 2008 Page 69 of 227

Parol evidence not admissible, otherwise the court would thereby not be construing a contract but would be rather creating a contract between the parties

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EVIDENCE
deciphered, or where the language is not understood by the court. [Rule 130, Sec. 16] 8) When the terms of an agreement have been intended in a different sense by the different parties to it, that sense is to prevail against either party in which he supposed the other understood it. And when different constructions of a provision are otherwise equally proper, that is to be taken which is the most favorable to the party in whose favor the provision is made. [Rule 130, Sec. 17] 9) Construction in favor of natural right. [Rule 130, Sec. 18] 10) Interpretation according to usage to determine instrument’s true character. [Rule 130, Sec. 19] •

REMEDIAL LAW
Exception: a) In a civil case by one against the other; b) In a criminal case for a crime committed by one against the other or the latter's direct descendants/ascendants. • The wife is competent to testify against her husband in a prosecution against him for raping their daughter. [Ordoño v. Daguigan] • Purpose: Privilege to prevent testimony by other spouse based on an aversion to use judicial compulsion in a litigation to place spouses in an opposing posture that may weaken or destroy their marriage. [People v. Francisco] • This privilege is also given to a spouse to prevent the other from testifying in his favor. [People v. Franciso] • For this rule to apply, the marriage must be valid and existing at the time the testimony was offered. [Arroyo v. Azur] 3) By reason of death/insanity of adverse party [Rule 130, Sec. 23] • “Dead Man’s Statute” or “Survivorship Rule” • General rule: Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor/administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim/demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind. • Exception: • The survivor may testify against the estate of the deceased where the latter was guilty of fraud which fraud was established by evidence other than the testimony of the survivor. [Ong Chua v. Carr] • He may also testify where he was the one sued by the decedent’s estate since the action then is not against the estate. [Tongco v. Vianzon] • He may likewise testify where the estate had filed a counterclaim against him or where the estate crossexamined him as to matters occurring during the lifetime of the deceased. [Goñi v. CA] • Purpose: To guard against the temptation to give false testimony 2008 Page 70 of 227

3. TESTIMONIAL EVIDENCE a. WITNESSES’ QUALIFICATION
• General rule: All persons who can perceive, and, perceiving, can make their known perception to others, may be witnesses. Religious/political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground for disqualification. [Rule 130, Sec. 20] • Exception: Disqualifications: 1) By reason of mental incapacity or immaturity; [Rule 130, Sec. 21] a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others. • A mental retardate is not for this reason alone disqualified from being a witness. [People v. Salomon (1993)] b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully. • Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu propio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. [Sec. 6, AM 00-4-07-SC (Child Witness Rule)] • Requisites of competency of a child as witness: [People vs. Mendoza (1996)] (1) Capacity of observation; (2) Capacity of recollection; (3) Capacity of communication. 2) By reason of marriage; [Rule 130, Sec. 22] • General rule: During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse. UP BAROPS

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on the part of the surviving party and to put the parties to the suit upon terms of equality in regard to opportunity to produce evidence. [Bautista] The survivor-witness must be a claimant against the estate and not a disinterested 3rd party. [SungaChan v. Chua]

REMEDIAL LAW
client to liability; When the name would furnish the only link that would form the chain of testimony necessary to convict. Physician-patient privilege; [Rule 130, Sec. 24(c)] • General rule: A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and which would blacken the reputation of the patient. • Exception: • The prohibition against the disclosure does not apply to 3rd parties but only to the physician. [Bautista; Krohn v. CA] • The privilege belongs to the patient, not the physician so that the latter cannot claim it if the patient abandons it. [Bautista] • This privilege does not apply when the doctor is presented as an expert witness and only hypothetical problems were presented to him. [Lim v. CA (1992)] Priest-petinent privilege; [Rule 130, Sec. 24(d)] • A minister or priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given by him in his professional character in the course of discipline enjoined by the church to which the minister or priest belongs. Public officer privilege; [Rule 130, Sec. 24(e)] • A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure. Parental and filial privilege. [Rule 130, Sec. 25] • A person cannot be compelled to testify against his parents, other direct ascendants, children or other direct descendants. c) The specific enumeration of disqualified witnesses in the ROC is understood to exclude the operation of causes of disability other than those mentioned therein. [Cavili v. Fernando] The failure of a witness to take an oath prior to his testimony is a defect that may be waived by the parties. [People v. Zheng Bai Hi]

3)

b. PRIVILEGED COMMUNICATIONS
1) Marital privilege; [Rule 130, Sec. 24(a)] • Purpose: Privilege for confidential communications justified on the ground that it promotes marital harmony. Marital partners should be encouraged to share their most closely-guarded secrets as an additional measure of intimacy and mutual support to their marriage. • General rule: Husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage • Exception: a) In a civil case by one against the other; b) In a criminal case for a crime committed by one against the other or the latter's direct descendants/ascendants. • A widow of a victim allegedly murdered may testify as to her husband’s dying declaration as to how he died the since the same was not intended to be confidential. [US v. Antipolo]
Marital disqualification [Rule 130, Sec. 22] Broader since it prevents all adverse testimony between spouses and not merely disclosure of confidential communications and may even cover matters occurring prior to the marriage One spouse should be a party to the case Marital privilege [Rule 130, Sec. 24] Limited to those made during the course of the marriage

4)

5)

Where neither spouse is a party, this is the disqualifying rule

6)

2) Attorney-client privilege; [Rule 130, Sec. 24(b)] • An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, his advice given thereon in the course of, or with a view to, professional employment. Nor can an attorney's secretary, stenographer or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity. • General rule: The attorney-client privilege may not be invoked to refuse to divulge the identity of the client. • Exception: [Regala v. Sandiganbayan (1996)] a) When a strong probability exists that revealing the name would implicate that person in the very same activity for which he sought the lawyer’s advice; b) When disclosure would open the 100% UP LAW UP BAROPS

c. ADMISSIONS AND CONFESSIONS
ADMISSIONS • Definition: Any statement of fact made by a party against his interest or unfavorable to the conclusion for which he contends or is inconsistent with the facts alleged by him. • Types: 1) Verbal or written; 2) Express or tacit;

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3) JUDICIAL – One made in connection with a judicial proceeding in which it is offered; EXTRAJUDICIAL – Any admission other than judicial (e.g. Rule 130, Sec 26 and 32). General rule: Any act/declaration/omission of a party as to a relevant fact may be given in evidence against him. [Rule 130, Sec. 26]

REMEDIAL LAW
an admission of any liability, and is not admissible against the offeror. 2) In criminal cases – An offer of compromise by the accused may be received in evidence as an implied admission of guilt. • Exception: a) In cases involving quasi-offenses (criminal negligence); b) Those allowed by law to be compromised. • An offer to pay or the payment of medical, hospital or other expenses occasioned by an injury is not admissible in evidence as proof of civil/criminal liability for the injury. A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to lesser offense, is not admissible in evidence against the accused who made the plea/offer. In cases of public crimes, the accused is permitted to show that the offer was not made under a consciousness of guilt but merely to avoid the inconvenience of imprisonment of for some other reason which would justify a claim by the accused that the offer was not in truth an admission of his guilt or an attempt to avoid the legal consequences which would ordinarily ensue therefrom. [People vs. Godoy (1995)] A plea of forgiveness may be considered as analogous to an attempt to compromise. [People vs. De Guzman (1996)] An offer to compromise does not require that a criminal complaint be first filed before the offer can be received as evidence against the offeror. [People vs. Yparriguirre (1997)]

Admission Merely a statement of fact

Maybe express or tacit - Flight from justice is an admission by conduct and circumstantial evidence of consciousness of guilt. [US v. Sarikala]

Confession Involves an acknowledgement of guilt/liability Must be express - The silence of an accused under custody or his failure to deny statements by another implicating him in a crime cannot be considered as a tacit confession of his participation in the commission of the crime. [People v. Alegre (1979)] Can be made only by the party himself and are admissible against his coaccused in some instances

Maybe made by 3rd parties, and in certain cases, admissible against a party


Admission Made against the interest of the person who admitted Self-serving testimony Made in favor of the interest of the person making the statement Made in anticipation of future litigation Not admissible in evidence

Admissible in evidence - Admissible not only against the party who made it or his successorsin-interest, but also against 3rd persons. [Viacrucis v. CA (1986)]

e. RES INTER ALIOS ACTA [Rule 130,
Sec. 28]

SELF-SERVING DECLARATIONS • Requisites 1) The statement was made extra-judicially; • It does not include the party’s testimony as a witness in court. [Co v. CA (1980)] 2) The statement is in favor of the declarant’s interest; 3) The statement was made in anticipation of future litigation • Where the statement was not made in anticipation of a future litigation, it is not self-serving. [Korisu v. Rizal Cement] ADMISSION BY SILENCE [Rule 130, Sec. 32] • An act/declaration made in the presence and within the hearing/observation of a party who does/says nothing when the act/declaration is such as naturally to call for action/comment if not true, and when proper and possible for him to do so, may be given in evidence against him. • The rule does not apply if the statements adverse to the party were made in the course of an official investigation. [US v. De la Cruz]

d. COMPROMISE [Rule 130, Sec. 27]
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Definition: The rights of a party cannot be prejudiced by an act/declaration/omission of another. (1st branch of the res inter alios acta rule) Only the admissions of a party-litigant are admissible as substantive evidence. Those of non-party witnesses may be admitted for impeachment purposes only. An admission by a 3rd-party cannot bind a party-litigant because such 3rd-party admission would be res inter alios acta and therefore hearsay. Extra-judicial statements of an accused implicating a co-accused may not be utilized against the latter. • Exception: [People v. Raquel (1996)] (1) The co-accused impliedly acquiesced in or adopted the confession by not questioning its truthfulness; (2) The accused persons voluntarily and independently executed identical confessions without collusion and without contradiction by the others present; (3) The accused admitted the facts after being apprised of the confession; (4) If they are charged as co-conspirators of the crime which was confessed by 1 of the accused and the confession is used only as a corroborating evidence; (5) The confession is used as circumstantial evidence to show the probability of participation by the co-conspirator; (6) The confessant testified for his codefendant; Page 72 of 227

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(7) The co-conspirator’s extra-judicial confession is corroborated by other evidence on record. EXCEPTIONS TO RES INTER ALIOS ACTA 1) Partner’s/agent’s admission; [Rule 130, Sec. 29] • Requisites: a) The act/declaration must be within the scope of the authority of the partner/agent. b) The act/declaration must have been made during the existence of the partnership/agency. c) The partnership or agency must be shown by evidence other than the act or declaration. • This rule applies to the act/declaration of a joint owner, joint debtor or other person jointly interested with the party. Statements made after a partnership has been dissolved do not fall within this exception. 2) Co-conspirator’s admission; [Rule 130, Sec. 30] • Requisites: a) The act/declaration must relate to the conspiracy; b) It must have been made during the existence of the conspiracy; • And not long after the conspiracy had been brought to end. [People v. Chaw Yaw Shun (1968)] c) The conspiracy must be shown by evidence other than such act/declaration. • The existence of the conspiracy may be inferred from the acts of the accused. [People v. Belen (1963)] • Where there is no independent evidence of the alleged conspiracy, the extra-judicial confession of an accused cannot be used against his co-accused as the res inter alios rule applies both to extra-judicial confessions and admissions. [People v. Alegre (1976)] • This rule in Rule 130, Sec. 30 applies only to extra-judicial statements, not to testimony given on the stand. [People v. Serrano (1959)] 3) Admission by privies. [Rule 130, Sec. 31] • Where one derives title to property from another, the act/declaration/omission of the latter, while holding the title, in relation to the property, is evidence against the former. • Requisites: [People v. Du] a) There exists a relation of privity between the party and the declarant; • Privity in estate may have arisen by succession, acts mortis causa or acts inter vivos. [Alpuerto v. Perez Pastor] b) Admission was made by declarant as predecessor-in-interest while holding title to property; c) Admission is in relation to the property. •

REMEDIAL LAW
Definition: A categorical acknowledgment of guilt made by an accused in a criminal case without any exculpatory statement or explanation. • If the accused admits having committed the act in question but alleges a justification therefore, the same is merely an admission. [US v. Tolosa] The declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily included therein, may be given in evidence against him. No person shall be compelled to be a witness against himself. [Art. 3, Sec. 17, Consti] • The operative act in determining whether the right against self-incrimination has been violated is when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect who has been taken into custody by the police to carry out a process of interrogation that lends itself to eliciting incriminatory statements and not the signing by the suspect of his supposed extrajudicial confession. [People v. Compil (1995)] • By affixing their signatures on the boxes, accused in effect made a tacit admission of the crime charged. These signatures are tantamount to an extrajudicial confession made without the assistance of counsel, which is not sanctioned by the Bill of Rights. [People v. Wong Chuen Ming (1996)] • Any confession, including a re-enactment without admonition of the right to silence and to counsel, and without counsel chosen by the accused is inadmissible in evidence. [People v. Yip Wai Ming (1996)] • The declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness who heard the confession as to the substance of what he heard if he heard and understood it. [People v. Maqueda (1995)]

III.

CONDUCT AND CHARACTER AS EVIDENCE

f.

CONFESSIONS [Rule 130, Sec. 33;
Rule 115 (e); Art. 3, Sec. 17, Consti]

CONDUCT
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do a certain thing at one time is not admissible to prove that he did or did not do the same or similar thing at another time. (2nd branch of res inter alios acta rule) [Rule 130, Sec. 34] • Exception: But that evidence may be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage and the like. • Previous acts of negligence is admissible to show knowledge or intent. [US v. Pineda] An offer in writing to pay a particular sum of money or to deliver a written instrument or specific personal property is, if rejected without valid cause, equivalent to the actual production and tender of the money/instrument, or property. [Rule 130, Sec. 34] • It is merely an evidentiary complement to the rule on tender of payment. [Art. 1256, CC]

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of which is not based on the personal knowledge of the witness but on the knowledge of some other person not on the witness stand. Rationale: The party against whom such hearsay evidence is presented is deprived of his right and opportunity to cross-examine the persons to whom the statements or writings are attributed. General rule: A witness testify only as to those facts which he knows of his personal knowledge. • PERSONAL KNOWLEDGE – Those derived from his own perception, i.e. his 5 sense (sight, hearing, touch, smell, taste). • Witnesses can testify only with regard to facts of which they have personal knowledge. Testimonial or documentary evidence is hearsay if it is based, not on the personal knowledge of the witness, but on the knowledge of some other person not on the witness stand. Consequently, hearsay evidence -- whether objected to or not -- has no probative value unless the proponent can show that the evidence falls within any of the exceptions to the hearsay rule, as provided in the ROC. [Mallari v. People (2004)] • The hearsay evidence rule applies also to affidavits when the supposed affiant never identified the affidavit and there was no opportunity for the prosecution to crossexamine him/her. [People v. Brioso (1971)] • The testimony of a witness regarding a statement made by another person, if intended to establish the truth of the facts asserted in the statement is clearly hearsay evidence. It is otherwise if the purpose is merely to establish the fact that the statement was made, or the tenor of such statement. [People v. Cusi (1965)] • The testimony of a witness on the confession made to him by the accused is not hearsay. He is testifying to a fact which he knows of his personal knowledge (was testifying to the fact that the accused told him that he stabbed the victim) and not to the truth of the statement of the accused. [People v. Gaddi (1989)] • Newspaper clippings or facts published in the newspapers are hearsay and have no evidentiary value unless substantiated by persons with personal knowledge of said facts. [People v. Aguel (1980)] 2 main requisites for evidence not to be hearsay: [Gulam v. Sps. Santos (2006)] 1) It must be based on personal knowledge; 2) There must be opportunity for crossexamination by the adverse party. The hearsay rule covers all types of evidence (oral, documentary and object). [Valencia v. Cabigting (1991)]

CHARACTER [Rule 130, Sec. 51; Rule 132, Sec.
14] • General rule: Character evidence is not admissible. • Exception: 1) In criminal cases: a) Accused – May prove his good moral character which is pertinent to the moral trait involved in the offense charged. b) Prosecution – May not prove the bad moral character of the accused, except in rebuttal. c) Offended Party – His/her good or bad moral character may be proved if it tends to establish in any reasonable degree the im/probability of the offense charged. • Victim’s good/bad moral character is not necessary in a crime of murder where the killing is committed through treachery or premeditation. [People v. Soliman (1957)] 2) In civil cases: • Moral character is admissible only when pertinent to the issue of character involved in the case. [Rule 130, Sec. 51] • Evidence of the witness’ good character is not admissible until such character has been impeached. [Rule 130, Sec. 14] • It is admissible when it is otherwise relevant, as when it tends to identify defendant as the perpetrator and tends to show is presence at the scene of the crime or in the vicinity of the crime at the time charged, or when it is evidence of a circumstance connected with the crime. [People vs. Irang (1937)]

IV.

HEARSAY RULE A. TESTIMONIAL KNOWLEDGE

HEARSAY - Any evidence the probative value UP BAROPS

CHILD WITNESS RULE AS A SPECIAL EXCEPTION [Sec. 28, AM 00-4-07-SC] 1) Hearsay testimony of a child describing any act or attempted act of sexual abuse may now be admitted in any criminal proceeding subject to certain prerequisites and the adverse party’s right to cross-examine. 2) The admissibility of such hearsay statements shall be determined by the court in light of specified subjective and objective considerations which provide sufficient indicia or reliability of the child witness. 2008 Page 74 of 227

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declarant is available as a witness. Declarations against interest are secondary evidence which constitute an exception to the hearsay rule and are admissible only when the declarant is unavailable as a witness. A declaration against interest is the opposite of a self-serving declaration.

DOCTRINE OF INDEPENDENTLY RELEVANT STATEMENTS • It is not covered by the hearsay rule. [People v. Cusi] • Independent of WON the facts stated are true, they are relevant since they are the facts in issue or are circumstantial evidence of the facts in issue. • WON the statement made is true is immaterial. What is sought to be proved is the fact that such statement was made. • It pertains to the tenor of statement, not truth.

3. PEDIGREE [Rule 130, Sec. 39]
• Definition: Relationship, family genealogy, birth, marriage, death, the dates when and the places where these fast occurred, and the names of the relatives. It also embraces facts of family history intimately connected with pedigree. The act/declaration must be made by a person deceased, or unable to testify, regarding the pedigree of another person related to him by birth/marriage. • The rules do not require any specific degree of relationship but the weight to which such act/declaration is entitled may be affected by the degree of relationship. The act/declaration is admissible if it occurred before the controversy, and the relationship between the 2 persons is shown by evidence other than such act/declaration. • The requirement that there be other proof than the declarations of the declarant as to the relationship does not apply where it is sought to reach the estate of the declarant himself and not merely to establish a right through his declarations to the property or some member of the family. [Tison v. CA] Requisites for admissibility: [Mendoza v. CA (1991)] 1) The declarant is dead or unable to testify. 2) The pedigree must be in issue. 3) The declarant must be a relative of the person whose pedigree is in issue. 4) The declaration must be made before the controversy arose. 5) The relationship between the declarant and the person whose pedigree is in question must be shown by evidence other than such declaration.

B. EXCEPTIONS TO HEARSAY RULE
1.

DYING DECLARATION [Rule
130, Sec. 37]

• •

“Antemortem statement” or “statement in articulo mortis”. Requisites: [People v. Macandog (2001)] 1) Declaration was made under the consciousness of an impending death; • The deceased should have believed himself in extremis, at the point of death where every hope of recovery is extinct. [People v. Laquinon (1985)] 2) Declaration refers to cause and surrounding circumstances of such death; 3) Declaration refers to facts the person is competent to testify to; 4) Declaration is offered in any case wherein his death is the subject of inquiry. However, the law does not require the declarant to state explicitly a perception of the inevitability of death. The foreboding may be gleaned from surrounding circumstances, such as the nature of the declarant’s injury and conduct that would justify a conclusion that there was consciousness of impending death. [People v. Latayada (2004)] The intervening time from the making of the declaration up to the actual death of the declarant is immaterial as long as the declaration was made under the consciousness of an impending death. [US v. Mallari]

4. FAMILY TRADITION [Rule 130,
Sec. 40]

2. DECLARATION AGAINST INTEREST [Rule 130, Sec. 38]
• Made by a person deceased, or unable to testify, against the interest of the declarant. • INABILITY TO TESTIFY – The person is either dead, mentally incapacitated or physically incompetent. Mere absence from the jurisdiction does not make him ipso facto unavailable. [Fuentes vs. CA (1996)] Subject of declaration/act: The fact asserted was at the time it was made so far contrary to declarant's own interest that a reasonable man in his position would not have made the declaration unless he believed it to be true. The declaration should be against himself or his successors in interest and against 3rd persons.

COMPARED TO ADMISSIONS AGAINST INTEREST • ADMISSIONS AGAINST INTEREST - Those made by a party to a litigation or by one in privity with or identified in legal interest with such party and are admissible WON the 100% UP LAW UP BAROPS

The exception refers to reputations/traditions existing in a family previous to the controversy, in respect to the pedigree of any one of its members. It may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Documentary evidence allowed under the exception: Entries in family bibles or other family books, charts, engravings on rings, family portraits and the like. • This enumeration, by ejusdem generis, is limited to objects which are commonly known as "family possessions," or those articles which represent, in effect, a family's joint statement of its belief as to the pedigree of a person. These have been described as objects "openly exhibited and well known to the family," or those "which, if preserved in a family, may be regarded as giving a family tradition." Other examples of these objects which are regarded as reflective of a family's Page 75 of 227

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reputation or tradition regarding pedigree are inscriptions on tombstones, monuments or coffin plates. [Jison v. CA (98)] A person’s statement as to his date of birth and age, as he learned of these from his parents or relatives, is an ante litem motam declaration of a family tradition. [Gravador v. Mamigo (1967)] • Such statement (as to his age) prevails over the mere opinion of the trial judge. [US v. Agadas (36 PHIL 246)] • However, such statement (as to age) cannot generally prevail over the secondary statement of his father. [US v. Evangelista]

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have the opportunity to concoct or contrive a story, the statement is admissible as part of the res gestae. [People v. Berame (1976)] Notes taken regarding a transaction by a person who is not a party thereto and who has not been requested to take down such notes are not part of the res gestae. [Borromeo v. CA (1976)]

7.

ENTRIES IN THE COURSE OF BUSINESS [Rule 130, Sec. 43;
Rule 8, Rules on Electronic Evidence (REE)]

5. COMMON REPUTATION [Rule
130, Sec. 41] • Admissible evidences under this exception: 1) Common reputation existing previous to the controversy, respecting facts of public or general interest more than 30 years old, or respecting marriage or moral character; • COMMON REPUTATION – The general or substantially undivided reputation although it need not be unanimous. It is the definite opinion of the community in which the fact to be proved is known or exists. • CHARACTER – The inherent qualities of a person. • REPUTATION - The opinion of a person by others. • Under this section, the character of a person is permitted to be established by his common reputation. • The character of a place as an opium joint may be proved by its common reputation in the community. [US v. Chua Chiok] 2) Monuments and inscriptions in public places as evidence of common reputation.

• •

The entry must have been made at or near the time of transactions to which they refer. The entry should have been made by a person deceased, or unable to testify, who was in a position to know the facts therein stated. Such entry is treated as prima facie evidence, if the person who made the entries did so in his professional capacity or in the performance of duty and in the ordinary or regular course of business/duty. If the entrant is available as a witness, the entries will not be admitted as an exception to the hearsay rule but they may nevertheless be availed of by said entrant as a memorandum to refresh his memory while testifying on the transactions reflected therein. [Cang Yui v. Gardner] There is no overriding necessity to bring into court all the clerks/EEs who individually made the entries in a long account. It is sufficient that the person who supervises their work testify that the account was prepared under his supervision and that the entries were regularly entered into in the ordinary course of business. [Yek Tong Fire & Marine Insurance v. Gutierrez]

6. RES GESTAE [Rule 130, Sec. 42]
• • Definition: It literally means “Things done”. Statements admissible as part of the res gestae: 1) Statements made by a person while a starting occurrence is taking place or immediately prior or subsequent thereto, with respect to the circumstances thereof. 2) Statements accompanying an equivocal act material to the issue, and giving it a legal significance. The rule refers to (a) spontaneous statements in connection with a startling occurrence relating to that fact and in effect forming a part thereof and (b) statements accompanying an equivocal act – verbal acts – on the theory that they are the verbal parts of the act to be explained. A dying declaration can be made only by the victim after the attack while a statement as part of the res gestae may be that of the killer himself after or during the killing. [People v. Reyes] • Where the elements of both are present, the statement may be admitted both as a dying declaration and as part of the res gestae. [People v. Balbas (1983)] If the statement was made under the influence of a startling event and the declarant did not UP BAROPS

ELECTRONIC EVIDENCE AS EXCEPTION TO HEARSAY • A memorandum/report/record or data compilation of acts/events/conditions/opinions/diagnoses, made by electronic, optical or other similar means at or near the time of or from transmission/supply of information by a person with knowledge thereof, and kept in the regular course/conduct of a business activity, and such was the regular practice to make the memorandum/report/record or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses. [Rule 8, Sec. 1, REE] • This presumption may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation/transmission/storage thereof. [Rule 8, Sec. 2, REE]

8. OFFICIAL RECORDS [Rule 130,
Sec. 44] • The entries must be made at or near the time of transactions to which they refer, and by a person deceased, or unable to testify, who was in a position to know the facts therein stated. The entrant must have personal knowledge of the facts stated by him or such facts acquired by him from reports made by persons under a Page 76 of 227

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legal duty to submit the same. [Salmon, Dexter & Co. v. Wijangco] Such record is prima facie evidence, if the person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty The report submitted by a police officer in the performance of his duties on the basis of his own personal observation of the facts reported, may properly be constituted as an exception. [Caltex v. Africa (1966)] Entries in a police blotter are not conclusive proof of the truth of such entries. [People vs. Cabuang (1993)] Baptismal certificates or parochial records of baptism are not official records. [Fortus v. Novero (1968)]

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[Rule 130, Sec. 49] • There is no precise requirement as to the mode in which skill/experience shall have been acquired. Scientific study and training are not always essential to the competency of a witness as an expert. Knowledge acquired by doing is no less valuable than that acquired by study. [Dilag Co. v. Merced (1949)] • Polygraph test has not as yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. [People vs. Adoviso (1999)] 2) Ordinary witness: If proper basis is given, and regarding: [Rule 130, Sec. 50] a) Identity of a person about whom he has adequate knowledge; b) Handwriting with which he has sufficient familiarity; c) Mental sanity of a person with whom he is sufficiently acquainted; d) Impressions of the emotion/behavior/condition/appear ance of a person.

9. COMMERCIAL LISTS [Rule 130,
Sec. 45] • Evidence of statements of matters of interest to persons engaged in an occupation contained in a list/register/periodical or other published compilation, is admissible as tending to prove the truth of any relevant matter so stated if that compilation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein.

10. LEARNED TREATISES [Rule
130, Sec. 46] • A published treatise/periodical/pamphlet on a subject of history/law/science/art is admissible as tending to prove the truth of a matter stated therein, if the court takes judicial notice or a witness expert in the subject testifies that the writer of the statement in the treatise/periodical/pamphlet is recognized in his profession/calling as expert in the subject.

11. PRIOR TESTIMONY [Rule 130,
Sec. 47] • The prior testimony must have been made by a witness deceased or unable to testify, in a former case/proceeding (judicial or administrative) involving the same parties and subject matter. • UNABLE TO TESTIFY – An inability proceeding from a grave cause almost amounting to death as when the witness is old and has lost the power of speech. [Tan v. CA (1967)] The prior testimony may be given in evidence against the adverse party who had the opportunity to cross-examine the witness.

V.

OPINION RULE
General rule: The opinion of a witness is not admissible. [Rule 130, Sec. 48] • Exception: 1) Expert witness: On a matter requiring special knowledge/skill/experience/ training which he shown to possess. UP BAROPS

VI.

WHAT NEED NOT BE PROVED AND BURDEN OF PROOF A. JUDICIAL NOTICE

WHEN MANDATORY [Rule 129, Sec. 1]

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1) 2) 3) 4) 5) 6) Existence and territorial extent of states; Their political history; Their forms of government; Their symbols of nationality; The law of nations; Admiralty and maritime courts of the world and their seals; 7) Political constitution and history of the Philippines; 8) Official acts of the legislative, executive and judicial departments of the Philippines • Courts cannot take judicial notice of foreign laws. [Yao-Kee v. Sy-Gonzales (1988)] • General rule: Courts are not mandated to take judicial notice of municipal ordinances. [City of Manila v. Garcia (1967)] • Exception: If the charter of the concerned city provides for such judicial notice. • General rule: Courts cannot take judicial notice of the contents/records of other cases even if both cases may have been tried or are pending before the same judge. [Prieto v. Arroyo (1965)] • Exception: The case clearly referred to or the original or part of the records of the case are actually withdrawn from the archives of that case and admitted as part of the record of the case pending when: [Tabuena v. CA (1991)] a) There is no objection from adverse party even with his knowledge thereof; b) It is at the request or with the consent of the parties. 9) Laws of nature; 10) Measure of time; 11) Geographical divisions. which would have becomes merely an requiring a formal admissible. [Torres v.

REMEDIAL LAW
required no proof. It extra-judicial admission offer in order to be CA (1984)]

C. BURDEN OF PROOF
• Definition: Duty of a party to present evidence on the facts in issue necessary to establish his claim/defense by the amount required by law. [Rule 131, Sec. 1] The test for determining where the burden of proof lies is to ask which party to an action/suit will fail if he offers no evidence competent to show the facts averred as the basis for the relief he seeks to obtain, and based on the result of an inquiry, which party would be successful if he offers no evidence. [Republic v. Vda. De Neri (2004)] General rule: All facts in issue and relevant facts must be proven by evidence. • Exception: [Republic v. Vda. De Neri (2004)] 1) Allegations contained in the complaint/answer immaterial to the issues; 2) Facts which are admitted or which are not denied in the answer, provided they have been sufficiently alleged; 3) Those which are the subject of an agreed statement of facts between the parties, as well as those admitted by the party in the course of the proceedings in the same case; 4) Facts which are the subject of judicial notice; 5) Facts which are legally presumed; 6) Facts peculiarly within the knowledge of the opposite party.

WHEN DISCRETIONARY [Rule 129, Sec. 2]
1) Matters of public knowledge; 2) Matters capable of unquestionable demonstration; 3) Matters which ought to be known to judges because of their judicial functions.

D. PRESUMPTIONS
CONCLUSIVE PRESUMPTIONS [Rule 131,
Sec. 2] 1) Whenever a party by his own declaration/act/omission, has led another to believe a particular thing to be true and act upon such belief, he cannot in any litigation arising out of such declaration/act/omission be permitted to falsify it. 2) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.

WHEN HEARING IS NECESSARY [Rule 129,
Sec. 3] 1) During the trial: The court may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon on its own initiative or on request of a party. 2) After the trial and before judgment or on appeal: The court may announce its intention to take judicial notice of any matter that is decisive of a material issue in the case and allow the parties to be heard thereon on its own initiative or on request of a party.

DISPUTABLE [Rule 131, Sec. 3]
1) Person is innocent of a crime or wrong; 2) Unlawful act is done with an unlawful intent; 3) Person intends the ordinary consequences of his voluntary act; 4) Person takes ordinary care of his concerns; 5) Evidence willfully suppressed would be adverse if produced; • This presumption will not apply if the evidence is at the disposal of both defense and the prosecution. [People v. Padiernos (1976)] 6) Money paid by one to another was due to the latter; 7) Thing delivered by one to another belonged to 2008 Page 78 of 227

B. JUDICIAL ADMISSIONS
• Definition: Admissions, verbal or written, made by the party in the course of the proceedings in the same case. It requires no proof. [Rule 129, Sec. 4] Judicial admission may be contradicted only by showing that: a) It was made through palpable mistake; b) No such admission was made. An original complaint, after being amended, loses its character as a judicial admission, UP BAROPS

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the latter; 8) Obligation delivered up to the debtor has been paid; 9) Prior rents or installments had been paid when a receipt for the later ones is produced; 10) A person found in possession of a thing taken in the doing of a recent wrongful act is the taker and doer of the whole act; otherwise, that things which a person possesses or exercises acts of ownership over, are owned by him; 11) Person in possession of an order on himself for the payment of the money or the delivery of anything has paid the money or delivered the thing accordingly; 12) Person acting in public office was regularly appointed or elected to it; 13) Official duty has been regularly performed; 14) A court or judge acting as such, whether in the Philippines or elsewhere, was acting in the lawful exercise of jurisdiction; 15) All the matters within an issue raised in a case were laid before the court and passed upon by it; all matters within an issue raised in a dispute submitted for arbitration were laid before arbitrators and passed upon by them; 16) Private transactions have been fair and regular; 17) Ordinary course of business has been followed; 18) There was a sufficient consideration for a contract; 19) Negotiable instrument was given or indorsed for a sufficient consideration; 20) An indorsement of negotiable instrument was made before the instrument was overdue and at the place where the instrument is dated; 21) A writing is truly dated; 22) Letter duly directed and mailed was received in the regular course of the mail; 23) Presumptions concerning absence:
No. of years of absence 7 10 5 Absence after age of 75 y/o 1. Person on board a vessel lost during a sea voyage, or an aircraft which is missing, who has not been heard of for 4 years since the loss of the vessel or aircraft 2. Member of the armed forces who took part in armed hostilities, and has been missing for 4 years 3. Person who has been in danger of death under other circumstances and whose existence has not been known for 4 years Person whose spouse has been absent for 4 consecutive years and who has a wellfounded belief that the absent spouse is already dead Missing spouse has been in danger of death under the extra-ordinary circumstances above

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Remarriage - Before marrying again, the spouse present must institute summary proceedings as provided in the

4

2

24) Acquiescence resulted from a belief that the thing acquiesced in was conformable to the law/fact; 25) Things have happened according to the ordinary course of nature and ordinary nature habits of life; 26) Persons acting as copartners have entered into a contract of co-partnership; 27) A man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage;
Situation A man and a woman are capacitated to marry each other and live exclusively with each other as husband and wife without the benefit of marriage or under void marriage Cohabitation by a man and a woman who are not capacitated to marry each other and who have acquired property through their actual joint contribution of money, property or industry Presumption Property acquired were obtained by their joint efforts/work/industry

Instances Absence without it being known WON he is alive

Purpose All purposes except for opening his succession Opening his Succession All purposes including opening of his succession

Such contributions and their corresponding shares including joint deposits of money and evidences of credit are equal

28) Presumptions governing children of women who contracted another marriage within 300 days after termination of her former marriage (in the absence of proof to the contrary):
When child was born Before 180 days after the solemnization of the subsequent marriage Presumption Considered to have been conceived during the former marriage, provided it be born within 300 days after the termination of the former marriage Considered to have been conceived during the subsequent marriage, even though it be born within the 300 days after the termination of the former marriage.

After 180 days following the celebration of the subsequent marriage

4

29) A thing once proved to exist continues as long as is usual with things of the nature; 30) The law has been obeyed; 31) A printed/published book, purporting to be printed/published by public authority, was so printed/published; 32) A printed/published book, purporting to contain reports of cases adjudged in tribunals of the country where the book is published, contains correct reports of such cases; 33) A trustee or other person whose duty it was to UP BAROPS 2008 Page 79 of 227

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convey real property to a particular person has actually conveyed it to him when such presumption is necessary to perfect the title of such person or his successor in interest; 34) Presumptions regarding survivorship: (Applicable for all purposes except succession)
When 2 persons perish in the same calamity, and it is not shown who died first, and there are no particular circumstances from which it can be inferred, the survivorship is determined from the probabilities resulting from the strength and the age of the sexes: Situation Person presumed to have survived Both < 15 y/o The older Both > 60 y/o The younger One < 15 y/o, The one <15 the other > 60 y/o Both > 15 and < 60 y/o, The male Of different sexes Both > 15 and <60 y/o, The older Of the same sex One < 15 or > 60 y/o, The one between those and the other between ages those ages

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1] • In open court; • Under oath/affirmation.

MODE OF ANSWERING
• General rule: Oral answers. • Exception: 1) Witness is incapacitated to speak; 2) Question calls for a different mode of answer. The testimony of the witness should be elicited by questions of counsel. But the court may itself propound questions either on the direct or cross examination of the witness. [People v. Moreno (1988)]

35) As between 2 or more persons called to succeed each other: If there is a doubt as to which of them died first, whoever alleges the death of one prior to the other, shall prove the same. In the absence of proof, they shall be considered to have died at the same time.

EXCEPTIONS IN GENERAL 1) Testimony of witness in civil cases may be given by depositions. [Rule 23 and 24] 2) Depositions or conditional examinations are allowed in criminal cases. [Rule 119 and 123] • Mere presentation of the affidavits of prosecution witnesses subject to crossexamination is not allowed by the ROC. [People v. Estenzo (1976)] 3) Affidavits are allowed in cases covered by Rule on Summary Procedure • The admissibility of evidence should not be confused with its probative value. Admissibility refers to the question of whether certain pieces of evidence are to be considered at all, while probative value refers to the question of whether the admitted evidence proves an issue. Thus, a particular item of evidence may be admissible, but its evidentiary weight depends on judicial evaluation within the guidelines provided by the rules of evidence [Heirs of Sabanpan v. Comorposa, (2003)] • Hence, although affidavits of witnesses are allowed/admissible under the Rule on Summary Procedure, these may not have any probative value.

RECORD OF PROCEEDINGS [Rule 132, Sec. 2]
• The entire proceedings of a trial/hearing should be recorded, including: • The questions propounded to a witness and his answer thereto; • Statements made by the judge or any of the parties/counsels/witnesses with reference to the case. Means of recording: 1) By shorthand; 2) By stenotype; 3) Other means found suitable by the court.

VII.

PRESENTATION OF EVIDENCE A. EXAMINATION OF WITNESS

MANNER OF EXAMINATION [Rule 132, Sec.
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TRANSCRIPT • TSN shall be made by the official stenographer/ stenotypist/recorder. He shall certify it as correct, and it shall be deemed prima facie a correct statement of the proceedings. • That a judge did not hear a case does not necessarily render him less competent in assessing the credibility of witnesses. He can rely on the TSN of their testimony and calibrate them in accordance with their conformity to common experience, knowledge and observation of ordinary men. Such reliance does not violate substantive and procedural due process of law. [People v. Cadley (2004)] 2008 Page 80 of 227

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RIGHTS AND OBLIGATIONS [Rule 132, Sec.
3] • Obligation of a witness: To answer questions, although his answer may tend to establish a claim against him. Rights of a witness: 1) To be protected from irrelevant, improper, or insulting questions, and from harsh or insulting demeanor; 2) Not to be detained longer than the interests of justice require; 3) Not to be examined except only as to matters pertinent to the issue; 4) Not to give an answer which will tend to subject him to a penalty for an offense, unless otherwise provided by law; • “Unless provided by law” refers to immunity statutes such as those which the witness is granted immunity from criminal prosecution for offenses admitted (e.g. Sec. 8, RA 1379). 5) Not to give an answer which will tend to degrade his reputation, unless it to be the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense.

RECALLING WITNESSES [Rule 132, Sec. 9]
• After both sides have concluded the examination of a witness, he cannot be recalled without leave of court. The court will grant or withhold leave in its discretion as the interests of justice may require. Examples of grounds for recalling a witness: [People v. Rivera (1991)] • Particularly identified material points were not covered in the cross-examination; • Particularly described vital documents were not presented to the witness; • The cross-examination was conducted in so inept a manner as to result in a virtual absence thereof.

ORDER OF EXAMINATION [Rule 132, Sec. 4]
DIRECT EXAMINATION [Rule 132, Sec. 5] • Examination-in-chief of a witness by the party presenting him, on the facts relevant to the issue.

CROSS-EXAMINATION [Rule 132, Sec. 6] • • When conducted: Upon the termination of the direct examination. Matters covered: Witness may be crossexamined by the adverse party: 1) As to any matter stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse; 2) To elicit all important facts bearing upon the issue.

LEADING AND MISLEADING QUESTIONS
[Rule 132, Sec. 10] • MISLEADING QUESTIONS – Questions that assume as true a fact not yet testified to by the witness, or contrary to that which he has previously stated. They are not allowed. LEADING QUESTIONS – Questions that suggest to the witness the answer which the examining party desires. General rule: Leading questions are not allowed. • Exception: 1) On cross examination; 2) On preliminary matters; 3) When there is a difficulty is getting direct and intelligible answers from a witness who is ignorant, or a child of tender years, or is of feeble mind, or a deaf-mute; • It is usual and proper for the court to permit leading questions in conducting the examination of a witness who is immature; aged and infirm; in bad physical condition; uneducated; ignorant of, or unaccustomed to, court proceedings; inexperienced; Page 81 of 227

RE-DIRECT EXAMINATION [Rule 132, Sec. 7] When conducted: After the crossexamination of the witness has been concluded. UP BAROPS 1 0 0 % U• L AWhy conducted: To explain or P W supplement his answers given during the cross-examination. • On re-direct-examination, the court in its discretion may allow questions •

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unsophisticated; feeble-minded; of sluggish mental equipment; confused and agitated; terrified; timid or embarrassed while on the stand; lacking in comprehension of questions asked or slow to understand; deaf and dumb; or unable to speak or understand the English language or only imperfectly familiar therewith. [People v. Dela Cruz (2002)] 4) On an unwilling or hostile witness; • A witness may be considered hostile only when declared by the court, upon adequate showing of his: [Rule 132, Sec. 12] a) Adverse interest; b) Unjustified reluctance to testify; c) His having misled the party into calling him to the witness stand. 5) On a witness who is an adverse party or an officer/director or managing agent of a public/private corporation or of a partnership/association which is an adverse party.

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2) He must be asked whether he made such statements; 3) If so, be allowed to explain them. The statements of a witness prior to her present testimony cannot serve as basis for impeaching her credibility, unless: [People v. Castillano (2003)] a) Her attention was directed to the inconsistencies/discrepancies; b) She was given an opportunity to explain said inconsistencies. • Without such opportunity to explain, the impeachment is incomplete. [People v. Relucio, 1978] LAYING THE PREDICATE – If the statements be in writing, they must be shown to the witness before any question is put to him concerning them. This rule does not apply where the previous statements of a witness are offered as evidence of an admission, and not merely to impeach him. [Ysmael v. Hashim]

WAIVER OF DEFECT IN IMPEACHMENT • Defect is deemed waived if no objection on that ground is raised when the document involved is offered for admission. [People v. Molo (1979)]

IMPEACHMENT OF WITNESSES
IMPEACHMENT OF ADVERSE PARTY’S WITNESS [Rule 132, Sec. 11] • How done: 1) By contradictory evidence; 2) By evidence that his general reputation for truth, honesty or integrity is bad; 3) By evidence that he has made at other times statements inconsistent with his present testimony. • Evidence of particular wrongful acts is not allowed except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense. IMPEACHMENT OF OWN WITNESS [Rule 132, Sec. 12] • General rule: The party producing a witness is not allowed to impeach the latter’s credibility. • Exception: 1) Unwilling or hostile witness. • Impeachment may be made by the party presenting the hostile or unwilling witness in all respects as if he had been called by the adverse party, except by evidence of bad character. • He may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief. 2) Witness is an adverse party or an officer/director or managing agent of a public/private corporation or of a partnership/association which is an adverse party. IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS [Rule 132, Sec. 13] • Requirements: 1) The statements must be related to him, with the circumstances of the times and places and the persons present; 100% UP LAW UP BAROPS

EXCLUSION AND SEPARATION OF WITNESSES [Rule 132, Sec. 15]
• The judge may exclude from the court any witness who is not under examination at that time so that he may not hear the testimony of other witnesses. The judge may also have the witnesses separated and prevented from conversing with each other until all have been examined. If a witness remains present in the hearing despite the court’s order that all other witnesses leave the court room, the discretion to admit/reject the testimony of such witness will lie within the court’s discretion. [People v. Sandal] It is within the power of the judge to order or to refuse to order the exclusion of a witness inside a court room. [People v. Lua Chu]

REFRESHING THE RECOLLECTION OF WITNESSES [Rule 132, Sec. 16]
REVIVAL OF PRESENT MEMORY • A witness may be allowed to refresh his memory respecting a fact, by anything written/recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and knew that the same was correctly written/recorded. • But the writing/record must be produced and may be inspected by the adverse party, who may cross-examine the witness upon it, and may read it in evidence. • This provision applies only when it is shown beforehand that there is need to refresh the memory of the witness. [Borromeo v. CA (1976)] • Where the witness has testified independently of or after his testimony has been refreshed by a memorandum of the events in dispute, such memorandum is not admissible as 2008 Page 82 of 227

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corroborative evidence. It is self-evident that a witness may not be corroborated by any written statement prepared wholly by him. He cannot be more credible just because he support his open-court declaration with written statements of the same facts even if he did prepare them during the occasion in dispute, unless the proper predicate of his failing memory is priorly laid down. What is more, even where this requirement has been satisfied, the express injunction of the rule itself is that such evidence must be received with caution, if only because it is not very difficult to conceive and fabricate evidence of this nature. This is doubly true when the witness stands to gain materially or otherwise from the admission of such evidence. [Borromeo v. CA (1976)] PAST RECOLLECTION RECORDED • A witness may testify from such writing or record (as in the case in revival of present memory) though he retain no recollection of the particular facts, if he is able to swear that the writing/record correctly stated the transaction when made; but such evidence must be received with caution.

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consul, vice-consul, consular agent or any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. • Translations of foreign judgments must be made by an official court interpreter of the Philippines or foreign governments or by a competent and accurate translator. [Pacific Asia Shipping v. NLRC, (1988)]

HOW TO PROVE NOTARIAL DOCUMENTS (EXCEPT LAST WILLS AND TESTAMENTS) [Rule 132, Sec. 30] • The document may be presented in evidence without further proof, the certificate of acknowledgment being prima facie evidence of the execution of the instrument or document involved. • Such notarized documents are evidence, even against 3rd persons, of the facts which gave rise to their execution and of the date of execution. [Rule 132, Sec. 23] HOW TO PROVE PUBLIC RECORDS (KEPT IN THE PHILIPPINES) OF PRIVATE DOCUMENTS REQUIRED BY LAW TO BE ENTERED THEREIN [Rule 132, Sec. 27] • By the original record, or a copy thereof, attested by the legal custodian of the record, with an appropriate certificate that such officer has the custody. • Such records are evidence, even against 3rd persons, of the facts which gave rise to their execution and of the date of execution. [Rule 132, Sec. 23] • Only baptismal certificates issued by the priests during the Spanish regime are considered public documents. [Adriano v. De Jesus] • While the birth certificate is primary evidence of a victim’s age in a case of statutory rape, in the absence of such evidence, the victim’s minority may be proved by other documentary evidence such as her baptismal certificate or other authentic records. [People v. Llandelar (2001)] CONTENTS OF ATTESTATION [Rule 132, Sec. 25] • The attestation must state that the copy is a correct copy of the original or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. • A mere copy of the foreign public document, without the attestation and the certificate, is not admissible in evidence to prove foreign law. [Wildvalley Shipping v. CA (2000)] IRREMOVABILITY OF RECORD [Rule 132, Sec. 26] • Any public record, an official copy of which is admissible in evidence, must not be removed from the office in which it is kept, except upon order of a court where the inspection of the record is essential to the just determination of a pending case. PROBATIVE VALUE [Rule 132, Sec. 23] • Documents consisting of entries in public records made in the performance of duty by a public officer are prima facie evidence of the 2008 Page 83 of 227

CONSEQUENCE OF GIVING IN EVIDENCE A PART OF AN ACT/DECLARATION/ CONVERSATION/WRITING/RECORD [Rule
132, Sec.17] • The whole of the same subject may be inquired into by the other, and when a detached act, declaration, conversation, writing or record is given in evidence, any other act, declaration, conversation, writing or record necessary to its understanding may also be given in evidence.

B. AUTHENTICATION AND PROOF OF DOCUMENTS
1. PUBLIC DOCUMENTS [Rule 132,
Sec. 19] • Public documents generally include notarial documents and are admissible in evidence without the necessity of preliminary proof as to its authenticity and due execution. [Antillon v. Barcellon] 1) Written official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country. 2) Records of official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines or of a foreign country.

HOW TO PROVE PUBLIC RECORDS [Rule 132, Sec. 24] 1) By an official publication thereof; 2) By a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied: • If the record is not kept in the Philippines, with a certificate that such officer has the custody. • If the record is in a foreign country, the certificate may be made by a secretary of the embassy/legation, consul-general, 100% UP LAW UP BAROPS

EVIDENCE
facts therein stated. PROOF OF LACK OF RECORD [Rule 132, Sec. 28] • A written statement signed by an officer having the custody of an official record or by his deputy that after diligent search, no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate that such officer has the custody, is admissible to prove that the records of his office contain no such record or entry.

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2) Collusion between the parties; 3) Fraud in the party offering the record, in respect to the proceedings.

4. ALTERATIONS [Rule 132, Sec.
31] • The party producing a document as genuine, which has been altered and appears to have been altered after its execution, in a part material to the question in dispute, must account for the alteration. Failure to do so would result in the inadmissibility of evidence. Such party may show that the alteration was made: 1) By another; 2) Without his concurrence; 3) With the consent of the parties affected by it; 4) Properly or innocently made; 5) Without changing the meaning or language of the instrument.

2. PRIVATE DOCUMENTS
• HOW TO PROVE IF DOCUMENT IS OFFERED AS AUTHENTIC [Rule 132, Sec. 20] • Its due execution and authenticity must be proved either: 1) By anyone who saw the document executed/written; 2) By evidence of the genuineness of the signature/handwriting of the maker. • Any other private document need only be identified as that which it is claimed to be. • AUTHENTIC DOCUMENT RULE – If all the following requisites have been met, no other evidence of its authenticity is required: [Rule 132, Sec. 21] 1) The private document is more than 30 years old; 2) It is produced from a custody in which it would naturally be found if genuine; 3) It is unblemished by any alterations or circumstances of suspicion. PROVING GENUINENESS OF HANDWRITING [Rule 132, Sec. 22] 1) It may be proved by any witness who believes it to be the handwriting of such person because: a) He has seen the person write; b) He has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person. • This constitutes an exception to the opinion rule. [Rule 130, Sec. 48 and 50] 2) Evidence respecting the handwriting may also be given by a comparison made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge. • Rule 132, Sec. 22 merely enumerates the methods of proving handwriting, but does not give preference or priority to a particular method. [Lopez v. CA (1978)] Expert evidence may also be admitted to prove the genuineness of the handwriting. [Rule 130, Sec. 49]

5.

SEAL [Rule 132, Sec. 32]

There shall be no difference between sealed and unsealed private documents insofar as their admissibility as evidence is concerned.

6. DOCUMENTS WRITTEN IN AN UNOFFICIAL LANGUAGE [Rule
132, Sec. 33] • These documents are not admissible unless accompanied by a translation into English or Filipino. Parties or their attorneys are directed to have the translation prepared before trial.

C. OFFER AND OBJECTION
1. OFFER OF EVIDENCE [Rule
132, Sec. 34] • • Purpose: For evidence to be considered by the court. In making the offer, the purpose for which the evidence is offered must be specified, because such evidence may be admissible for several purposes under the doctrine of multiple admissibility. The rule may be relaxed, provided the evidence must have duly identified by testimony duly recorded and they must have been incorporated in the records of the case. [Vda. De Orate v. CA (1995)]

WHEN TO MAKE OFFER [Rule 132, Sec. 35]
Kind of evidence Testimonial When to offer At the time the witness is called to testify Documentary and After the presentation of a party’s Object testimonial evidence Offer shall be done orally unless allowed by the court to be done in writing.

HOW TO PROVE IF DOCUMENT IS OFFERED AS AUTHENTIC [Rule 132, Sec. 20] • The document need only be identified as that which it is claimed to be.

3. IMPEACHMENT OF JUDICIAL RECORD [Rule 132, Sec. 29]
• Impeachment is done using evidence of: 1) Want of jurisdiction in the court or judicial officer; UP BAROPS

Absence of an offer is a defect which is waived when a party fails to object when the ground became reasonably apparent, as when the witness is called to testify without any prior offer. [Catuira v. CA (1994)] Page 84 of 227

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• The defect caused by the absence of formal offer of exhibits can be cured by the identification of the exhibits by testimony duly recorded and the incorporation of the said exhibits in the records of the case. [People v. Mate (1981)]
Documentary

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Offeror may have the same attached or made part of the record Offeror may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony

Testimonial

2. OBJECTIONS [Rule 132, Sec. 36]

What to object to Testimonial evidence When to object Immediately after offer is made Question propounded in As soon as the grounds the course of oral become reasonably examination apparent Offer done in writing Within 3 days after notice of the offer, unless a different period is allowed by the court The grounds for objection must be specified in any case.

Documents marked as exhibits during the hearing but which were not formally offered in evidence cannot be considered as evidence nor shall they have evidentiary value. [Vda. De Flores v. WCC (1977)]
Identification of documentary evidence • Done in the course of the trial and is accompanied by the marking of the evidence • That a document has been identified does not mean that it will be offered Formal offer of exhibit • Done only when the party rests his/her case

WHEN REPETITION OF OBJECTION IS UNNECESSARY [Rule 132, Sec. 37] • When it becomes reasonably apparent in the course of the examination of a witness that the questions being propounded are of the same class as those to which objection has been made, whether such objection was sustained or overruled. • It shall be sufficient for the adverse party to record his continuing objection to such class of questions. • A court may, motu proprio, treat the objectin as a continuing one. [Keller v. Ellerman & Bucknall Steamship] RULING ON THE OBJECTION [Rule 132, Sec. 38] • It should be given immediately after the objection is made, unless the court desires to take a reasonable time to inform itself on the question presented. But the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situation presented by the ruling. • The reason for sustaining or overruling an objection need not be stated. However, if the objection is based on two or more grounds, a ruling sustaining the objection on one or some of them must specify the ground/s relied upon. • Reservation of a ruling by the court on an objection to the admissibility of evidence, without subsequently excluding the same, amounts to a denial of an objection. [People v. Tavera]

[Interpacific Transit v. Aviles (1990)]

3. MOTION TO STRIKE [Rule 132,
Sec. 39] • The court may sustain an objection and order the answer given to be stricken off the record should a witness answer the question before the adverse party had the opportunity to voice fully its objection and such objection is found to be meritorious. The court may also, upon motion, order the striking out of answers, which are incompetent, irrelevant or otherwise improper.

VIII. WEIGHT AND SUFFICIENCY OF EVIDENCE (REQUIRED QUANTUM OF EVIDENCE)
PREPONDERANCE OF EVIDENCE (CIVIL CASES) [Rule 133, Sec. 1]
• Definition: The evidence adduced by one side is, as a whole, superior to or has greater weight than that of the other. Where the evidence presented by one side is insufficient to ascertain the claim, there is no Page 85 of 227

4.

TENDER OF EXCLUDED EVIDENCE [Rule 132, Sec. 40]
How to tender the evidence

Kind of evidence

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preponderance of evidence. [Habagat Grill v. DMC Urban (2005)] In determining preponderance, the court may consider: 1) All the facts and circumstances of the case; 2) The witnesses’ manner of testifying; 3) Their intelligence; 4) Their means and opportunity of knowing the facts to which they testify; 5) The im/probability of their testimony; 6) Their interest or want of interest; 7) Personal credibility so far as the same may legitimately appear upon the trial; 8) Number of witnesses (although preponderance is not necessarily equated with the number of witnesses).

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the facts to which they testify. [Habagat Grill v. DMC Urban (2005)] Insofar as the civil aspect of the case is concerned, the prosecution or the private complainant is burdened to adduce preponderance of evidence or superior weight of evidence. Although the evidence adduced by the plaintiff is stronger than that presented by the defendant, he is not entitled to a judgment if his evidence is not sufficient to sustain his cause of action. The plaintiff must rely on the strength of his own evidence and not upon the weakness of that of the defendants’. [Quinto v. Andres (2005)]

PROOF BEYOND REASONABLE DOUBT (CRIMINAL CASES) [Rule 133, Sec. 2]
• Definition: That degree of proof which produces conviction in an unprejudiced mind. It does not mean such a degree of proof as, excluding the possibility of error, produces absolute certainty. Only moral certainty is required – that degree of proof which produces conviction in an unprejudiced mind. General rule: Findings of the judge who tried the case and heard the witnesses are not to be disturbed on appeal, unless there are substantial facts and circumstances which have been overlooked and which, if properly considered, might affect the result. [People v. Cabrera (1990)] • Exception: The rule does not apply when the issue revolved on the identification of the accused or credibility of witness and one judge heard the testimony and a different judge penned the decision. [People v. Escalante (1984); People v. CA (2000)] • Rationale: The latter judge is not in a better position than the appellate courts to make the determination. The number of witnesses should not in and by itself determine the weight of evidence. However, the numerical factor may be considered in case of conflicting testimonies. [Caluna v. Vicente (1951)] The testimony of the offended party is not essential to convict an accused if there are already other evidence to prove guilt. [People v. Juliada]. Inconsistencies/contradictions on details do not materially impair the credibility of such witness, but on the contrary are indications of veracity rather than prevarication. [People v. Vinas (1968)] The doctrine of falsus in uno, falsus in omnibus is not absolute. The court may accept or reject portions of the witness’ testimony depending on the inherent credibility thereof or the corroborative evidence in the case. [People v. Baao (1986)] In criminal cases in which the quantum of evidence required is greater than in civil cases, the testimony of only one witness - if credible, straightforward and worthy of belief - is sufficient to convict. Under Rule 133, Sec. 1, among the facts and circumstances to be considered by the court in determining which of the presented evidence has superior weight is the witnesses’ means and opportunity to know UP BAROPS

SUBSTANTIAL EVIDENCE (ADMINISTRATIVE CASES) [Rule 133, Sec. 5]
• Definition: The amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion.

EXTRA-JUDICIAL CONFESSIONS [Rule 133,
Sec. 3] • General rule: An extra-judicial confession made by an accused, is not a sufficient ground for conviction. • Exception: When corroborated by evidence of the actual commission of a particular crime (corpus delicti).

CORPUS DELICTI • Corpus delicti is not synonymous with the whole charge so as to require that all the elements of the crime be established independently of the extra-judicial confession. [People v. Comendador (1980)] • Elements: 1) The existence of a certain act or result forming the basis of the criminal charge; 2) The existence of a criminal agency as the cause of the act or result. • In murder, the fact of death is the corpus delicti. [People v. Garcia] • Where there is doubt as to the identity of a cadaver, in the absence of any other evidence, there is no corpus delicti. [People v. Mutuc (1984)]

CIRCUMSTANTIAL EVIDENCE [Rule 133, Sec.
4] • Requisites for circumstantial evidence to be sufficient for conviction: 1) There is more than 1 circumstance; 2) The facts from which the inferences are derived are proven; 3) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. Under the RPC, one cannot be convicted of treason by means of circumstantial evidence. [Art. 114, RPC]

WHEN COURT MAY STOP INTRODUCTION OF FURTHER TESTIMONY [Rule 133, Sec. 6]
• Upon any particular point when the evidence upon it is already so full that more witnesses to the same point cannot be reasonably expected to be additionally persuasive. This power Page 86 of 227

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should be exercised with caution. 3) Administrative cases.

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DISPOSING OF MOTIONS BASED ON FACTS NOT APPEARING ON RECORD [Rule
133, Sec. 7] • The Court may hear the matter on affidavits or depositions presented by the respective parties but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

DEFINITION
• ELECTRONIC DOCUMENT – Information or the representation of information/data/figures/symbols or other modes of written expression described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received/recorded/transmitted/stored/ processed/retrieved/produced electronically. It includes digitally signed documents and any print out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. [Rule 2, Sec. 1(h), REE] ELECTRONIC DATA MESSAGE – Information generated, sent, received or stored by electronic, optical or similar means. [Rule 2, Sec. 1(g), REE] The two terms may be used interchangeably under the REE.

ELECTRONIC SIGNATURE [Rule 2, Sec. 1(j),
REE] • Definition: Any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology/procedure employed/adopted by a person and executed/adopted by such person with the intention of authenticating, signing or approving an electronic data message or electronic document. It includes DIGITAL SIGNATURES - Electronic signature consisting of a transformation of an electronic document or an electronic data message using an asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signer’s public key can accurately determine: [Rule 2, Sec. 1(e), REE] 1) WON the transformation was created using the private key that corresponds to the signer’s public key; 2) WON the initial electronic document had been altered after the transformation was made. • DIGITALLY SIGNED - An electronic document or electronic data message bearing a digital signature verified by the public key listed in a certificate. [Rule 2, Sec. 1(f), REE] It is admissible in evidence as the functional equivalent of the signature of a person on a written document. [Rule 6, Sec. 1, REE]

IX.

RULES ON ELECTRONIC EVIDENCE (REE)

SCOPE
• Unless otherwise provided herein, REE shall apply whenever an electronic document or electronic data message is offered or used in evidence. [Rule 1, Sec. 1, REE] Cases covered: [Rule 1, Sec. 2, REE] 1) All civil actions and proceedings; 2) Quasi-judicial; UP BAROPS

AUTHENTICATION OF E-SIGNATURES [Rule 6, Sec. 2, REE] 1) By evidence that a method or process was utilized to establish a digital signature and verify the same; 2) By any other means provided by law; 3) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature. DISPUTABLE PRESUMPTIONS RELATING TO ESIGNATURES [Rule 6, Sec. 3, REE] 2008 Page 87 of 227

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1) The electronic signature is that of the person to whom it correlates; 2) The electronic signature was affixed by that person with the intention of authenticating or approving the electronic document to which it is related or to indicate such person’s consent to the transaction embodied therein; 3) The methods or processes utilized to affix or verify the electronic signature operated without error or fault. DISPUTABLE PRESUMPTIONS RELATING TO DIGITAL SIGNATURES [Rule 6, Sec. 4, REE] 1) The information contained in a certificate is correct; 2) The digital signature was created during the operational period of a certificate; 3) No cause exists to render a certificate invalid or revocable; 4) The message associated with a digital signature has not been altered from the time it was signed; 5) A certificate had been issued by the certification authority indicated therein. •

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authenticity must be proved by any of the following means: [Rule 5, Sec. 2, REE] 1) By evidence that it had been digitally signed by the person purported to have signed the same; 2) By evidence that other appropriate security procedures/devices as may be authorized by the SC or by law for authentication of edocuments were applied to the document; 3) By other evidence showing its integrity and reliability to the satisfaction of the judge. A document electronically notarized in accordance with the rules promulgated by the SC shall be considered as a public document and proved as a notarial document under the ROC. [Rule 5, Sec. 3, REE]

ELECTRONIC DOCUMENT [Rule 2, Sec. 1(h),
REE] • • It is the functional equivalent of paper-based documents. [Rule 3, Sec. 1, REE] It is admissible in evidence if it complies with the rules on admissibility prescribed by the ROC and related laws and is authenticated in the manner prescribed by the REE. [Rule 3, Sec. 2, REE] The confidential character of a privileged communication is not lost solely on the ground that it is in the form of an electronic document. [Rule 3, Sec. 3, REE]

BEST EVIDENCE RULE [Rule 4, Sec. 1, REE]
• An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately.

ORIGINALS AND COPIES [Rule 4, Sec. 2, REE] • Copies/duplicates regarded as originals: 1) When a document is in 2 or more copies executed at or about the same time with identical contents; 2) Counterparts produced by the same impression as the original, or from the same matrix, or by mechanical/electronic re-recording, or by chemical reproduction, or by other equivalent techniques that accurately reproduces the original. • Copies/duplicates not admissible to the same extent as the original: 1) If a genuine question is raised as to the authenticity of the original; 2) If in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original. AUTHENTICATION OF E-DOCUMENTS • The burden of proving authenticity is on the person seeking to introduce an e-document in any legal proceeding. [Rule 5, Sec. 1, REE] • Before any private electronic document offered as authentic is received in evidence, its 100% UP LAW UP BAROPS

EVIDENTIARY WEIGHT OF E-DOCUMENTS [Rule 7, Sec. 1, REE] • Factors for assessing evidentiary weight: 1) The reliability of the manner/method in which it was generated/stored/communicated, including but not limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data message or document, in the light of all the circumstances as well as any relevant agreement; 2) The reliability of the manner in which its originator was identified; 3) The integrity of the information and communication system in which it is recorded/stored, including but not limited to the hardware and computer programs or software used as well as programming errors; 4) The familiarity of the witness or the person who made the entry with the communication and information system; 5) The nature and quality of the information which went into the communication and information system upon which the electronic data message or electronic document was based; 6) Other factors which the court may consider as affecting the accuracy/integrity of the electronic document or electronic data message. INTEGRITY OF AN INFORMATION AND COMMUNICATION SYSTEM [Rule 7, Sec. 2, REE] • In any dispute involving the integrity of the information and communication system in which an e-document or e-data message is recorded/stored, the court may consider the following factors: 1) WON the information and communication system or other similar device was operated in a manner that did not affect the integrity of the e-document, and there are no other reasonable grounds to doubt the integrity of the information and communication system; 2) WON the e-document was recorded/stored by a party to the proceedings with interest adverse to that of the party using it; 3) WON the e-document was recorded/stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not act under the control of the party using it. HEARSAY RULE EXCEPTION [Rule 8, Sec. 1, REE] • A memorandum/report/record or data 2008 Page 88 of 227

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compilation of acts/events/conditions/opinions/diagnoses made by electronic, optical or other similar means at or near the time of or from transmission or supply of information by a person with knowledge thereof, and kept in the regular course/conduct of a business activity, and such was the regular practice to make the memorandum/report/record or data compilation by electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified witnesses. This presumption may be overcome by evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation, transmission or storage thereof. [Rule 8, Sec. 2, REE] 11, Sec. 2, REE]

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ESTABLISHING MATTERS RELATING TO THE ADMISSIBILITY AND EVIDENTIARY WEIGHT OF AN E-DOCUMENT [Rule 9, REE] • By an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. • The affidavit must affirmatively show the competence of the affiant to testify on the matters contained therein. [Rule 9, Sec. 1, REE] • The affiant shall be made to affirm the contents of the affidavit in open court and may be crossexamined as a matter of right by the adverse party. [Rule 9, Sec. 2, REE]

AUDIO, PHOTOGRAPHIC AND VIDEO EVIDENCE • Audio, photographic and video evidence of events/acts/transactions shall be admissible provided it shall be shown/presented/displayed to the court and shall be identified/explained/authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof. [Rule 11, Sec. 1, REE] • The same rule covers a recording of the telephone conversation or ephemeral electronic communication. • If ephemeral, audio, photographic and video evidence are recorded/embodied in an electronic document, then the provisions authentication e-documents apply. [Rule 11, Sec. 2, REE]

ELECTRONIC TESTIMONY
• After summarily hearing the parties pursuant to Rule 9, REE, the court may authorize the presentation of testimonial evidence by electronic means. Before so authorizing, the court shall determine the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstances, including the protection of the rights of the parties and witnesses concerned. [Rule 10, Sec. 1, REE] When examination of a witness is done electronically, the entire proceedings, including the questions and answers, shall be transcribed by a stenographer, steno typist or other recorder authorized for the purpose, who shall certify as correct the transcript done by him. The transcript should reflect the fact that the proceedings, either in whole or in part, had been electronically recorded. [Rule 10, Sec. 2, REE] The electronic evidence and recording thereof as well as the stenographic notes shall form part of the record of the case. Such transcript and recording shall be deemed prima facie evidence of such proceedings. [Rule 10, Sec. 3, REE]

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RULE ON EXAMINATION OF A CHILD WITNESS [AM 00-4-07-SC]

EPHEMERAL ELECTRONIC COMMUNICATION • Definition: Refers to telephone conversations, text messages, chatroom sessions, streaming audio, streaming video and other electronic forms of communication the evidence of which is not recorded/retained. [Rule 2, Sec. 1(k), REE] • It shall be proven by the testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability of such witnesses, other competent evidence may be admitted. [Rule 100% UP LAW UP BAROPS

SCOPE AND APPLICABILITY
• It shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses. [Sec. 1] The ROC provisions on deposition, conditional examination of witnesses and evidence shall be applied suppletorily. [Sec. 32] Page 89 of 227

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especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition. WHEN TO TAKE THE CHILD’S TESTIMONY • The court may order that the testimony of the child should be taken during a time of day when the child is well-rested. [Sec. 14]

CHILD WITNESS
• Definition: [Sec. 4(a)] 1) Any person who at the time of giving testimony is < 18 years; 2) In child abuse cases, A child includes one over 18 years but is found by the court as unable to fully take care of himself or protect himself from abuse/neglect/cruelty/ exploitation/discrimination because of a physical/mental disability or condition. Every child is presumed qualified to be a witness. To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. [Sec. 6(b)] When the court finds that substantial doubt exists regarding the ability of the child to perceive/remember/communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court, a competency exam shall be conducted. • The age of the child by itself is not a sufficient basis for a competency examination. [Sec. 6(a)] • The court has the duty of continuously assessing the competence of the child throughout his testimony. [Sec. 6(f)]

PROVISIONS TESTIFYING

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EXCLUSION OF THE PUBLIC DURING THE CHILD’S EXAMINATION
• Rationale: 1) To protect the right to the child’s privacy; 2) If the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment/fear/timidity.

ALTERNATIVE MODES OF GIVING TESTIMONY
1) Live-link television testimony, in criminal cases where the child is a victim or a witness. [Sec. 25] • The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor. The trauma must be of a kind which would impair the completeness/truthfulness of the child’s testimony. • If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor. 2) Screens, one-way mirrors and other devices to shield child from accused. [Sec. 26] 3) Videotaped deposition. [Sec. 27] • If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. • The rights of the accused during trial, 100% UP LAW UP BAROPS

1) Interpreter for child. [Sec. 9] 2) Facilitator to pose questions to child. [Sec. 10] 3) Support persons. [Sec. 11] • A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by 1 or 2 persons of his own choosing to provide him emotional support. 4) Waiting area for child witnesses that is separate from waiting areas used by other persons. [Sec. 12] 5) Courtroom environment is made a more comfortable environment for the child. [Sec. 13] 6) Recess during testimony: The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and re-cross examinations as often as necessary depending on his developmental level. [Sec. 15] 7) Testimonial aids: use of dolls, anatomicallycorrect dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him in his testimony. [Sec. 16] 8) Emotional security item: While testifying, a child shall be allowed to have an item of his own choosing such as a blanket/toy/doll. [Sec. 17] 9) Conduct in questioning the witness: The court shall exercise control over the questioning of children so as to: [Sec. 19] a) Facilitate the ascertainment of the truth; b) Ensure that questions are stated in a form appropriate to the child’s developmental level; c) Protect children from harassment or undue embarrassment; d) Avoid waste of time. • The court may allow the child witness to testify in a narrative form. 10) Weight given to testimony of child witness: His testimony, if credible by itself, shall be sufficient to support a finding of fact/conclusion/judgment subject to the standard of proof required in criminal and noncriminal cases. [Sec. 22]

HEARSAY EXCEPTION IN CHILD ABUSE CASES [Sec. 28]
• Before the hearsay statement may beadmitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. • If the child is available, the court shall require the child to be present at the presentation of the hearsay statement for cross-examination by the adverse party. • If the child is unavailable, the fact of unavailability must be proved by the proponent and his hearsay testimony shall Page 90 of 227

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be admitted only if corroborated by other admissible evidence.

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SEXUAL ABUSE SHIELD RULE [Sec. 30]
• General rule: The following evidence are inadmissible in any criminal proceeding involving alleged child sexual abuse: 1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; 2) Evidence offered to prove the sexual predisposition of the alleged victim. • Exception: Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury or other physical evidence shall be admissible.

OTHER PROTECTIVE MEASURES
• Video/audio tapes that are part of the court record may be viewed only by parties, their counsel, their expert witness and the guardian ad litem. But they cannot divulge the tape (or any portion thereof) to any other person, except as necessary for the trial. The court may issue additional orders to protect the child’s privacy. Publication (or causing it) in any format any identifying information of a child who is or is alleged to be a victim/accused of a crime or a witness thereof, or an immediate family of the child, shall be liable for contempt of court. A child has a right at any court proceeding not to testify regarding personal identifying information that could endanger his physical safety or his family. However, the court may require the child to testify regarding personal identifying information in the interest of justice. The records of a youthful offender shall be considered as privileged and may not be disclosed in/directly to anyone for any purpose whatsoever. • Exception: If he has been charged and the court acquits him, or dismisses the case or commits him to an institution and subsequently releases him pursuant to Chapt. 3, PD 603: 1) To determine if he may have his sentence suspended (under Art. 192, PD 603); 2) To determine if he may be granted probation (under PD 968); 3) To enforce his civil liability, if said liability has been imposed in the criminal action.

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